Filed 6/17/14 P. v. Rabon CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E057295
v. (Super.Ct.No. RIF1201502)
SHETIKA ANN RABON, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Helios (Joe) Hernandez,
Judge. Dismissed.
James R. Bostwick, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,
Peter Quon, Jr., and Seth M. Friedman, Deputy Attorneys General, for Plaintiff and
Respondent.
1 Defendant and appellant Shetika Ann Rabon appeals after a guilty plea to offenses
arising out of an alcohol-related motor vehicle accident, which killed another motorist.
She argues that her convictions in counts 2 and 3 should be dismissed as lesser included
offenses to her conviction in count 1. She also contends that she is entitled to additional
presentence custody conduct credits, and to a reduction in some assessed fees, if counts 2
and 3 are dismissed. The issue as to counts 2 and 3, whether defendant can be convicted
of lesser included offenses, is not cognizable on this appeal, because defendant never
sought a certificate of probable cause as to that issue. Because defendant has not raised a
proper and timely challenge to the validity of her convictions in counts 2 and 3, there is
no basis to modify the fees assessed as to each convicted count. The appeal is dismissed.
FACTS AND PROCEDURAL HISTORY
In March 2011, defendant was driving her car on a highway in Riverside County.
Defendant was under the influence of alcohol at the time, with a measured blood alcohol
level of approximately 0.16 percent. She drove her car across double yellow centerlines,
and struck an oncoming vehicle driven by Wilfredo Garcia. Garcia was killed as a result
of the collision.
Defendant was charged in a felony complaint with vehicular manslaughter while
driving under the influence of alcohol (Pen. Code, § 191.5, subd. (b), Veh. Code,
§§ 23152, 23153) (count 1), and with a great bodily injury enhancement (Pen. Code,
§§ 1192.7, 1192.8). In count 2, the complaint also charged defendant with driving under
the influence, causing death or bodily injury (Veh. Code, § 23153, subd. (a)), and in
2 count 3 with driving with a blood alcohol level over 0.08 percent, and causing death or
bodily injury (Veh. Code, § 23153, subd. (b)). The complaint alleged, with respect to
counts 2 and 3, that defendant had personally inflicted great bodily injury or death on the
victim (Pen. Code, §§ 12022.7, subd. (a), 1192.7, subd. (c)(8)).
In open court, defendant pleaded guilty to all three counts, and admitted the
special allegations with respect to counts 2 and 3. The trial court struck the special
allegation with respect to count 1 on motion of the prosecutor. Defendant raised the
point, however, that counts 2 and 3 were necessarily included offenses to the charge in
count 1, and argued that she could not be convicted of all three. Indeed, the plea
agreement itself had indicated as much. After some argument on the issue, defense
counsel asked the trial court to determine, at the sentencing hearing, whether the charges
in counts 2 and 3 should be dismissed.
At sentencing, the trial court imposed a prison term of two years on count 1. The
court imposed, but stayed (Pen. Code, § 654), prison sentences of two years each as to
counts 2 and 3. The trial court did strike the great bodily injury enhancements as to
counts 2 and 3.
3 The court awarded defendant credit for eight days of actual presentence custody,
plus one day of conduct credit under Penal Code section 2933.1. The court further
imposed a booking fee of $450.34, a court operation assessment fee of $120 ($40 per
convicted charge) and a criminal conviction assessment fee of $90 ($30 per convicted
charge).1 The court ordered victim restitution in the amount of $12,000.
Defendant filed a timely notice of appeal.
ANALYSIS
I. The Convictions in Counts 2 and 3 Were Lesser Included Offenses to the Charge in
Count 1, But Defendant Failed to Apply for a Certificate of Probable Cause to Review
the Issue
Multiple convictions of greater and necessarily included lesser offenses are not
permitted. (People v. Pearson (1986) 42 Cal.3d 351, 355.) Defendant maintained below,
during the plea proceedings, that the offenses in counts 2 and 3 were lesser included
offenses to the charge in count 1.
In fact, the plea agreement defendant signed contains an advisement that she “will
enter a guilty plea to the following charges and enhancements: CT 1—191.5 (b) (dismiss
GBI allegation per 12022.7(g)) [¶] CTS 2 & 3 are lesser included offenses.”
1 In her opening brief, defendant argued that the booking fee imposed by the trial court was improper. In her reply brief, defendant concedes the propriety of the booking fee. (People v. McCullough (2013) 56 Cal.4th 589.)
4 In oral proceedings, however, the following discussion took place:
“THE COURT: . . . [I]t’s a plea to the Court, and it’s going to be Counts 1 and 2
and 3. Okay.
“[DEFENSE COUNSEL]: Well, Your Honor, that’s the issue that we discussed in
chambers. Counts 2 and 3 are necessarily included lesser offenses. There’s case law on
point. She can’t be convicted of all three. And so what we wanted to do was plead to
Count 1 today.
“THE COURT: Yes.
“[DEFENSE COUNSEL]: Sentencing is going to be October 9th. And we can
write our sentencing memorandums at that point in time.
“THE COURT: Okay. Well, I agree on Counts 2 and 3, they are 654 to each
other.
“[DEFENSE COUNSEL]: Correct.
“THE COURT: And—but you can plead guilty, you just can’t be punished for
both.
“[DEFENSE COUNSEL]: Actually, Your Honor, there is an issue with being
convicted of both a 191.5 and the 23153s because they are lesser includeds. There is new
case law on that.
“THE COURT: Right. And I’m pretty sure I agree with you there too. But I just
don’t—I think you can plead—be convicted. I just don’t think you can be punished. But
if you think they can’t even be convicted, I need to look at a case or something.
5 “[THE PROSECUTOR]: There is a split of authority. If we can discuss that issue
at sentencing, that would be great.”
The court then proceeded to accept guilty pleas as to all three counts and set the
sentencing hearing.
Defendant filed a sentencing memorandum, arguing that the offenses in counts 2
and 3 were lesser included offenses to the charge in count 1. She argued, “[f]or the
purposes of determining the propriety of multiple convictions, an offense is necessarily
included in another offense if the crimes are defined in such a way as to make it
impossible to commit the greater offense without also committing the lesser offense.”
(Citing People v. Pearson, supra, 42 Cal.3d 351, 355.) She argued that, “[w]hen the
focus of the analysis is directed at PC § 191.5, rather than manslaughter in general, it
becomes apparent that VC § 12153(a) is also necessarily included in PC § 191.5, since
one who injures a person while driving under the influence commits a violation of VC
[§] 23153, and if that person dies from that injury a violation of PC § 191.5 has
occurred.” (Citing People v. Miranda (1994) 21 Cal.App.4th 1464, 1466 (Miranda).)
Defendant also relied on People v. Binkerd (2007) 155 Cal.App.4th 1143 (Binkerd) for
the proposition that a defendant cannot be convicted of both vehicular manslaughter and
driving under the influence, “since both offenses require[d] proof the defendant was
driving under the influence of alcohol when she violated the law, crossing the double
yellow [center] lines. The defendant could not commit a violation of count 1 without
6 injuring that same victim, as charged in count 2.” (Citing Binkerd, supra, 155
Cal.App.4th 1143 at p. 1148.)
Alternatively, defendant argued that, at the least, she could be punished only for
the vehicular manslaughter crime, and the sentences for the other offenses should be
stayed under Penal Code section 654.
The People’s sentencing memorandum argued that the defendant in In re Pope
(2010) 50 Cal.4th 777 (Pope) pleaded guilty to gross vehicular manslaughter while
intoxicated (Pen. Code, § 191.5, subd. (a)), as well as both driving under the influence of
drugs or alcohol, causing injury (Veh. Code, § 23153, subd. (a)) and driving with an
unlawful blood alcohol level, causing injury (Veh. Code, § 23153, subd. (b)). The
defendant also admitted enhancement allegations that the Vehicle Code offenses caused
great bodily injury. (Pen. Code, § 12022.7, subd. (a).) The primary issue presented in
Pope was whether the conduct custody credits were properly calculated. The prosecutor
below, however, relied on Pope to argue that “the court in Pope would not have engaged
in a determination of the appropriateness of the good time [custody] credits awarded to
[the] defendant . . . . The Supreme Court would never have reached the question of
credits in the Pope case if they agreed with the Binkerd and the Miranda courts’ holding.
Instead, the court would have been forced to reject the plea outright due to duplicative
and unlawful convictions of necessarily included offenses, and would never have reached
the credits determination as it would have been an outright unlawful sentence. The
second reason the Pope court’s ruling is significant is because it is . . . a recent decision
7 by the California Supreme Court and thus is unquestionably binding on this court.
Consequently, the People request that the defendant be sentenced on all counts where she
suffered a conviction.”
At the sentencing hearing, defense counsel raised the issue again: “Actually, Your
Honor, there’s going to be an issue because there’s a third issue that we do need to
resolve regarding the lesser includeds, whether you are going [to] rule they are lesser
includeds because that will affect the credits.
“THE COURT: Right. There are two lesser included offenses. Well, just one
really, 23152(a) with a 12202.7.
“[DEFENSE COUNSEL]: Correct, Your Honor.
“THE COURT: And the other one’s a 23153(b) with a 12022.7. Those are just
the same crimes looking at them in different ways.
“Yes, it’s a lesser included offense—and actually I found a case that addresses that
issue. And in that case the court was told to strike the GBI and to punish the person for
the greater, which is the 192.5. And that’s what we’re doing here. And so the—on the
lesser count—that’s the 23152(a). On that one, she’s sentenced to the midterm two years,
but pursuant to Section 654, it’s stayed because it’s the same conduct. And the 12022.7
is stricken. Same thing for Count 3 . . . the 23152[, subdivision] (b). That one—again
it’s the midterm of two years, but it’s stayed pursuant to 654, meaning that it’s the same
conduct that created all of these crimes. And the 12022.7 GBI is stricken. Okay. So
that’s the sentence.”
8 The court appeared on the one hand to accept that the charges in counts 2 and 3
were lesser included offenses to the charge in count 1, but nevertheless proceeded to
impose (and stay) sentences on each of them. Defense counsel objected: “And just for
the record, I would simply like to note, as I stated in my brief regarding the lesser
includeds, I don’t believe that she can be sentenced under 654. I believe the conviction
actually has to be reversed and the great bodily injury stricken. So I do want to note that
for the record. . . . [¶] . . . [¶] So we are objecting to a sentence on the lesser included,
because I don’t believe we get there once she’s sentenced on the greater offense.”
In determining whether one offense is a necessarily included lesser offense to
another offense, the California courts apply two general tests, the “elements test” and the
“accusatory pleading test.” When a defendant has been convicted of two charged
offenses, and it is asserted that one is a lesser included offense to the other, we look
solely to the statutory elements test. (People v. Reed (2006) 38 Cal.4th 1224, 1229
(Reed).) “‘Under the elements test, if the statutory elements of the greater offense
include all of the statutory elements of the lesser offense, the latter is necessarily included
in the former.’ ([Reed, supra, 38 Cal.4th] at p. 1227.) In other words, ‘“[i]f a crime
cannot be committed without also necessarily committing a lesser offense, the latter is a
lesser included offense within the former.”’ (Ibid., quoting People v. Lopez (1998) 19
Cal.4th 282, 288 [79 Cal.Rptr.2d 195, 965 P.2d 713].)” (People v. Sanders (2012) 55
Cal.4th 731, 737.)
9 Penal Code section 191.5, subdivision (b) provides: “Vehicular manslaughter
while intoxicated is the unlawful killing of a human being without malice aforethought,
in the driving of a vehicle, where the driving was in violation of Section 23140, 23152, or
23153 of the Vehicle Code, and the killing was either the proximate result of the
commission of an unlawful act, not amounting to a felony, but without gross negligence,
or the proximate result of the commission of a lawful act that might produce death, in an
unlawful manner, but without gross negligence.”
Vehicle Code section 23153, subdivision (a), provides: “It is unlawful for any
person, while under the influence of any alcoholic beverage or drug, or under the
combined influence of any alcoholic beverage and drug, to drive a vehicle and
concurrently do any act forbidden by law, or neglect any duty imposed by law in driving
the vehicle, which act or neglect proximately causes bodily injury to any person other
than the driver.” Vehicle Code section 23153, subdivision (b), provides: “It is unlawful
for any person, while having 0.08 percent or more, by weight, of alcohol in his or her
blood to drive a vehicle and concurrently do any act forbidden by law, or neglect any
duty imposed by law in driving the vehicle, which act or neglect proximately causes
bodily injury to any person other than the driver.”2
2 Vehicle Code section 23153, subdivisions (a) and (b) as provided in the version of the statute effective until January 1, 2014. As of January 1, 2014, Vehicle Code former section 23153 is repealed, and a new version becomes effective. (See Stats. 2012, ch. 753, § 5 (AB 2552), effective January 1, 2013, operative January 1, 2014.) Vehicle Code section 23153, as effective on January 1, 2014, provides in subdivisions (a) and (b): [footnote continued on next page]
10 Notably, violation of Vehicle Code section 23153 (presumably, either under
Veh. Code, § 23153, subds. (a) or (b)) is a part of the definition of vehicular
manslaughter under Penal Code section 191.5, subdivision (b). When the conviction of
vehicular manslaughter under Penal Code section 191.5, subdivision (b) is based on a
single act or event, which is found to violate Vehicle Code section 23153 subdivision (a)
or subdivision (b) (or both), the conviction for violation of Vehicle Code section 23153,
subdivision (a) or subdivision (b) is an element of the greater offense, and the Vehicle
Code violations are then also necessarily included lesser offenses to the greater (vehicular
manslaughter) offense.
[footnote continued from previous page] “(a) It is unlawful for a person, while under the influence of any alcoholic beverage to drive a vehicle and concurrently do any act forbidden by law, or neglect any duty imposed by law in driving the vehicle, which act or neglect proximately causes bodily injury to any person other than the driver. “(b) It is unlawful for a person, while having 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle and concurrently do any act forbidden by law, or neglect any duty imposed by law in driving the vehicle, which act or neglect proximately causes bodily injury to any person other than the driver. “In any prosecution under this subdivision, it is a rebuttable presumption that the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of driving the vehicle if the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of the performance of a chemical test within three hours after driving.” The difference in the two versions of Vehicle Code section 23153, subdivisions (a) and (b) lies in the rebuttable presumption provision in subdivision (b).
11 On appeal, the People have abandoned the thesis, argued below, that the Vehicle
Code violations were not necessarily included offenses. The People have conceded that
Vehicle Code section 23153, subdivisions (a) and (b), are lesser included offenses to
Penal Code section 191.5, subdivision (b). (Citing Binkerd, supra, 155 Cal.App.4th at
pp. 1147-1150; Miranda, supra, 21 Cal.App.4th at pp. 1466-1468.)3
Instead, the People argue that defendant is barred from raising the issue on appeal,
first, because she failed to obtain a certificate of probable cause; second, because she
waived the issue in accepting the plea deal; and, third, because her argument represents
an impermissible effort to improve her plea agreement on appeal.
Taking the issues in inverse order, we reject the contention that the argument on
appeal is an impermissible effort to improve defendant’s plea bargain on appeal. (Citing
People v. Hester (2000) 22 Cal.4th 290 (Hester), and In re Giovani M. (2000) 81
Cal.App.4th 1061 (Giovani M.).) In Hester, supra, 22 Cal.4th 290, the defendant pleaded
no contest to five substantive counts and an allegation of personal use of a weapon, in
exchange for a stipulated four-year prison term. The court sentenced defendant to the
four-year term as agreed, and imposed (improperly) concurrent sentences on the
remaining counts. On appeal, the defendant argued that the sentences on the additional
counts were unauthorized, because they should have been stayed pursuant to Penal Code
3 The People argued below that the California Supreme Court in Pope, supra, 50 Cal.4th 777, had impliedly overruled Binkerd and Miranda on the issue, even though that issue had not been squarely presented in Pope. The People do not renew that argument on appeal.
12 section 654. (Hester, supra, 22 Cal.4th at pp. 293-294.) The California Supreme Court
rejected the claim, even though the defendant’s argument was in substance correct, that
the additional sentences were unauthorized and should have been stayed. The reviewing
court deemed itself unable to reverse the sentences, because, “[w]here the defendants
have pleaded guilty in return for a specified sentence, appellate courts will not find error
even though the trial court acted in excess of jurisdiction in reaching that figure, so long
as the trial court did not lack fundamental jurisdiction. The rationale behind this policy is
that defendants who have received the benefit of their bargain should not be allowed to
trifle with the courts by attempting to better the bargain through the appellate process.”
(Id. at p. 295.)
In Giovani M., supra, 81 Cal.App.4th 1061, the Court of Appeal applied the
Hester rationale in the context of a bargained-for conviction on two charges, one of
which was a lesser included offense to the other. Pursuant to a negotiated agreement, a
minor agreed to admit two counts alleged in the petition, in exchange for a maximum
commitment term of five years two months; other more serious charges were dismissed.
On appeal, the minor argued that his admission of one of the charges should be vacated
or set aside, because it was a necessarily lesser included offense to the other admitted
charge. However, the court found that, “when the minor chose to accept the bargain with
the juvenile court in order to avoid a longer maximum period of confinement, the minor
waived any right to claim that the court was precluded from sustaining the petition on
count 3 even if it could be viewed as an act in excess of jurisdiction for the court to
13 sustain count 3.” (Id. at p. 1065, citing Hester.) The court repeated the notion, spelled
out in Hester, that binding the minor to his bargain, even when the trial court may have
acted in excess of its jurisdiction, was “necessary because a person who has received the
benefit of their bargain should not be allowed to ‘trifle with the courts’ by attempting to
better the bargain through the appellate process.” (Ibid.)
In Giovani M., “if the minor was successful in having his admission to count 3
vacated, the entire arrangement under which counts 2 and 3 were admitted and counts 1
and 4 were dismissed would no longer be viable. Upon remand, the entire matter
including all counts and special allegations would once again be before the juvenile court
and the minor would once again be potentially subject to a longer period of custody than
he originally bargained for.” (Giovani M., supra, 81 Cal.App.4th at p. 1065, fn. 3.)
Accepting the minor’s argument on appeal would render the entire bargain untenable.
Moreover, the minor had “obtain[ed] a substantial benefit in maximum confinement time,
and the dismissal of a potential strike,” so that he should not then be allowed to “‘trifle
with the courts’ by trying to receive even a better bargain in the appellate court.” (Id. at
p. 1065.) Even more importantly, the appellate court rejected the contention that one of
the pleaded offenses was a necessarily lesser included offense to the other. (Id. at
pp. 1065-1066.)
14 Here, in contrast to Hester and to Giovani M., defendant did not agree as part of
her bargain to plead guilty to counts 2 and 3. The plea agreement she signed specified
that she would plead only to count 1, precisely because counts 2 and 3 were lesser
included offenses. The trial court expressly agreed with defendant that the offenses were
lesser included offenses, but believed, erroneously, that defendant could be required to
plead to all charges, including the lesser included offenses; the court took the view that a
defendant could be convicted of both greater and lesser offenses, but merely could not be
punished for both. Under compulsion of the trial court’s legal error, defendant was
required to enter pleas to all three counts, in spite of her written plea agreement to the
contrary. Even so, she entered guilty pleas to all three counts with the specific proviso
that the issue would be reserved for and decided at the sentencing hearing, after briefing
by the parties.
In these circumstances, defendant is hardly “trifl[ing] with the courts” to “better
[her] bargain” on appeal. Rather, the trial court “trifle[d] with” defendant and wrongfully
refused to honor the bargain defendant had made. Generally, “a plea agreement is
interpreted according to the same rules as other contracts . . . .” (People v. Toscano
(2004) 124 Cal.App.4th 340, 344; accord, People v. Vargas (2001) 91 Cal.App.4th 506,
533.) “It is settled that ‘when a plea rests in any significant degree on a promise or
agreement of the prosecutor, so that it can be said to be part of the inducement or
consideration, such promise must be fulfilled.’ (Santobello v. New York (1971) 404 U.S.
257, 262 [30 L.Ed.2d 427, 92 S.Ct. 495].) ‘The [United States] Supreme Court has thus
15 recognized that due process applies not only to the procedure of accepting the plea
[citation], but that the requirements of due process attach also to implementation of the
bargain itself. It necessarily follows that violation of the bargain by an officer of the state
raises a constitutional right to some remedy.’ (People v. Mancheno (1982) 32 Cal.3d
855, 860 [187 Cal.Rptr. 441, 654 P.2d 211]; accord, People v. Walker (1991) 54 Cal.3d
1013, 1024 [1 Cal.Rptr.2d 902, 819 P.2d 861] [‘When a guilty plea is entered in
exchange for specified benefits such as the dismissal of other counts or an agreed
maximum punishment, both parties, including the state, must abide by the terms of the
agreement.’].)” (People v. Paredes (2008) 160 Cal.App.4th 496, 507.) Here, there was
not a plea bargain between defendant and the prosecution, but defendant nevertheless
agreed to plead guilty only to count 1, she asserted at all times—in the written plea
agreement, by objection at the time the court took the plea, by reserving the issue of the
lesser included offenses for decision at the sentencing hearing, by written briefing in
advance of the sentencing hearing, and by argument at the sentencing hearing itself—that
the plea to the greater offense rendered unlawful any conviction on the lesser included
offenses. The trial court, as an arm of the judicial branch, was the state agency party to
the agreement with defendant. The trial court agreed with defendant that the offenses in
counts 2 and 3 were lesser included offenses to the charge in count 1, but insisted,
contrary to law, that defendant had to plead guilty to these additional offenses. The court
was charged with the duty to know, and to fairly apply, the law; instead, the court altered
the bargain defendant had made, to achieve a result that was beyond the court’s power.
16 Defendant here is not trying to better her bargain on appeal; she seeks to restore the terms
of the bargain she actually made.
Defendant also did not waive the issue by “accepting” a “plea deal.” The trial
court maintained, notwithstanding defendant’s written agreement to plead to count 1, that
it could require defendant to be convicted on all three counts, both the greater offense and
the two lesser included offenses. This was clear legal error. At the time of actually
taking the pleas, defendant acted under compulsion of the trial court’s insistence that she
enter guilty pleas to all three counts, but she expressly reserved the issue for decision at
the time of the sentencing hearing, after the parties had had the opportunity to submit
written authorities to the court. The court agreed. In fact, the court acknowledged that
counts 2 and 3 were lesser included offenses, but mistakenly believed defendant could be
convicted of, but not sentenced for, both. The court stated, “[b]ut if you think they can’t
even be convicted, I need to look at a case or something.” Effectively, defendant made a
conditional plea: the pleas to the lesser included offenses were made only to acquiesce in
the court’s insistence on proceeding in that manner, subject to the court’s correction of its
error once it had reviewed the authorities stating that an accused may not be convicted of
both a greater and a lesser included offense. As it happened, the court failed to make the
correction, despite the clear law on the issue. Defendant objected clearly at every stage
of the proceedings; the issue has not been waived or forfeited on the ground of failure to
object. (See People v. Scott (1978) 21 Cal.3d 284, 290 [“In a criminal case, the objection
17 will be deemed preserved if, despite inadequate phrasing, the record shows that the court
understood the issue presented.”].)
Having cleared two of three fences, however, defendant’s claim falls fatally at the
third: she did not obtain a certificate of probable cause. A certificate of probable cause is
required when an appeal is taken after a plea of guilty or nolo contendere, and the issue or
ground of appeal goes to the validity of the plea. Under California Rules of Court, rule
8.304(b)(4), however, “(4) The defendant need not comply with (1) if the notice of
appeal states that the appeal is based on: [¶] (A) The denial of a motion to suppress
evidence under Penal Code section 1538.5; or [¶] (B) Grounds that arose after entry of
the plea and do not affect the plea’s validity.”
Even though the trial court considered the issue—whether defendant could be
convicted of both greater and lesser included offenses—at the sentencing hearing, and
thus its final decision occurred “after [defendant’s initial] entry of the plea,” there can be
no question that the issue is not merely a matter of sentencing or post-plea occurrences,
but fundamentally attacks the validity of the pleas themselves, as to counts 2 and 3.
Defendant was therefore required to seek and obtain a certificate of probable cause.
California Rules of Court, rule 8.304 (formerly rule 31) provides in relevant part:
“(a) . . . [¶] (1) To appeal from a judgment or an appealable order of the superior court
in a felony case—other than a judgment imposing a sentence of death—the defendant or
the People must file a notice of appeal in that superior court. To appeal after a plea of
guilty or nolo contendere or after an admission of probation violation, the defendant must
18 also comply with (b).” (Cal. Rules of Court, rule 8.304(a)(1).) California Rules of Court,
rule 8.304(b) states: “(b) . . . [¶] (1) Except as provided in (4), to appeal from a
superior court judgment after a plea of guilty or nolo contendere or after an admission of
probation violation, the defendant must file in that superior court—with the notice of
appeal required by (a)—the statement required by Penal Code section 1237.5 for issuance
of a certificate of probable cause.
“(2) Within 20 days after the defendant files a statement under (1), the superior
court must sign and file either a certificate of probable cause or an order denying the
certificate.
“(3) If the defendant does not file the statement required by (1) or if the superior
court denies a certificate of probable cause, the superior court clerk must mark the notice
of appeal ‘Inoperative,’ notify the defendant, and send a copy of the marked notice of
appeal to the district appellate project.
“(4) The defendant need not comply with (1) if the notice of appeal states that the
appeal is based on: [¶] (A) The denial of a motion to suppress evidence under Penal
Code section 1538.5; or [¶] (B) Grounds that arose after entry of the plea and do not
affect the plea's validity.
19 “(5) If the defendant's notice of appeal contains a statement under (4), the
reviewing court will not consider any issue affecting the validity of the plea unless the
defendant also complies with (1).”
In People v. Mendez (1999) 19 Cal.4th 1084 (Mendez), the California Supreme
Court held (under the former rule, rule 31) that the application for a certificate of
probable cause must be completed in a full and timely fashion. Because a notice of
appeal must be timely filed within 60 days after judgment, and because the trial court
must act on an application for a certificate of probable cause within 20 days after the
statement requesting a certificate has been filed, the outside time limit for seeking or
obtaining a certificate of probable cause is a maximum of 80 days. (Id. at pp. 1095-
1096.)
Had defendant here timely applied for, and been denied, a certificate of probable
cause, she could have sought review of any alleged erroneous denial by writ. However,
she patently failed to seek a certificate of probable cause, timely or otherwise, even
though the root of the issue she raised is the validity of her guilty pleas to counts 2 and 3.
In accordance with Mendez, supra, 19 Cal.4th 1084, and the requirements of strict
compliance with Penal Code section 1237.5, we are without jurisdiction to review the
issue raised in the appeal. (Mendez, supra, 19 Cal.4th at p. 1099 [“[T]he defendant may
not obtain review of certificate issues unless he has complied with section 1237.5 and
rule 31(d), first paragraph, fully, and, specifically, in a timely fashion—that is to say,
unless he has done what they require, how they require, and when they require. Plainly,
20 he has not complied with them fully unless he has complied with them in a timely
fashion. For, as indicated, their demands extend beyond what and how to when. If he has
complied only ‘substantially,’ he has not complied sufficiently; and if he has not
complied sufficiently, he has not complied at all.”].)
Because defendant failed to obtain a certificate of probable cause, and because the
essence of her claim undermines the validity of the convictions and pleas on counts 2 and
3, we are without jurisdiction to hear the matter as to this issue. (See People v. Panizzon
(1996) 13 Cal.4th 68, 89, fn. 15.) Accordingly, we must order the appeal dismissed.4
Our conclusion is strengthened by this court’s recent decision in People v. Zuniga
(Apr. 28, 2014, E057444) __ Cal.App.4th __ [Fourth Dist., Div. Two] in which we held
that the failure to obtain a certificate of probable cause barred a challenge to the factual
basis for a no contest plea.
4 Defendant did raise an issue—fees imposed at sentencing—that ordinarily are non-certificate issues, which may be raised and heard on appeal in the absence of a certificate of probable cause. However, in this instance, defendant’s challenge to the court operation fees and assessment fees is dependent upon her primary argument, that the convictions on counts 2 and 3 were not valid. Under these circumstances, the failure to preserve the certificate issue effectively defeats the non-certificate sentencing (fees) issue.
21 DISPOSITION
Defendant failed to preserve her primary issue for review on appeal because she
did not apply for a certificate of probable cause. Her non-certificate issue was dependent
upon review of the certificate issue; the failure to preserve the one, defeats the other.
Because of the failure to seek a certificate of probable cause, the issue(s) raised are not
cognizable on appeal. The appeal is dismissed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MCKINSTER J. We concur:
HOLLENHORST Acting P. J.
CODRINGTON J.